You’ve just seen a product and think that it is incredible. You want to start to sell it, but first, you want to know if you can get a patent on that existing product.
You cannot get a patent for an existing product for two reasons. First, you are not the inventor. Second, the existing product is not new (i.e., novel) which is one of the legal requirements to get a patent. However, if you improve the existing product, you can get a patent on nonobvious improvements.
Let’s explore.
Who can get a patent on an existing product?
Only the inventor can get a patent on the existing product. Under US patent laws, only the inventor can get a patent on an invention. A person is an inventor if the person “contributes to the conception of the invention.” Because you did not contribute to the conception of the existing product, you are not the inventor of the existing product.
However, when you make an improvement to the existing product, you are the inventor of the improvement. You can get a patent on the improvement.
Are there any other reasons you can’t get a patent on an existing product?
You cannot get a patent on an existing product because it is not new or novel. Under U.S. Patent Laws, only novel inventions can receive a patent. See 35 U.S.C. 102 and MPEP 2152. Another reason that you cannot get a patent on an existing product is that patents are granted only to new inventions. When you submit your application for a patent, you have to inform the United States Patent and Trademark Office via an information disclosure statement that the existing product is prior art against you. See, 37 CFR 1.98.
When the examiner reviews the existing product, the examiner will reject your application for a patent for being not novel. As such, you cannot get a patent on the existing product.
What can be patented on an existing product?
Any improvement you conceived of for the existing product can be patented. First, you would be considered the inventor of the improvement. Second, the improvement would be new or novel. If the improvement is also considered nonobvious, then the patent office would grant you a patent on the improvement.
Improvements may include new features, new functionality which are non-obvious variants of the existing product.
An easy way to determine if the improvement is a patentable invention is to see if the improvement adds a new benefit to the existing product. For example, does the improvement make the existing product easier to use, less expensive to use, etc.?
If so, then you want to explore the potential for getting the improvement patented. You may also want to conduct your own patent search. Read my 7 steps to take before spending money on a patent.
Can you patent a product assembled from off-the-shelf parts?
Many inventors believe that their product is not patentable because they are assembling it from off-the-shelf products. Each off-the-shelf product is old or not novel but the combination would be new. As such, you can patent a product assembled from off-the-shelf parts as long as the assembled product is new and non-obvious. In particular, the combination of assembled off-the-shelf parts must be new. Moreover, the combination must be non-obvious.
Can you patent a new use for an existing product?
A new use (i.e., method) for an existing product may be patented. See, MPEP 2112. However, the new use must be a nonobvious use for the existing product.
Let me explain.
Laypeople think in terms of a product. Can you get a patent on a product? However, patent law is quite complex. You can get a patent on various aspects of the product. For example, you could get a patent on:
- How to assemble the product?
- A crucial replacement part of the product (e.g., toner cartridge).
- How to use the product?
- How to install the product?
Most of the time, these aspects of the invention are obvious when you look at the invention. For example, when you see a screwdriver, you inherently know you are supposed to grab the handle then contact the tip of a screwdriver to a screw head, then turn to tighten or loosen the screw.
Other obvious uses of a screwdriver would be to use it as a mini pry bar or to push a pin. These other uses are not patentable.
Other uses that are nonobvious may be patented. For example, using a screwdriver as a handle for a spoon might be a nonobvious use, and patentable.
Can you sell someone else’s patented product?
You cannot manufacture and sell someone else’s patented product. If you do, you would be liable for patent infringement. However, you can sell someone else’s patented product if you received a license from the patent owner or were able to avoid infringement of their patented.
To check which patents cover the patented product, you can
- conduct an assignee search; and/or
- look for patent markings on the patented product.
An assignee search looks for the patent owner in the patent office database to see which patents the patent owner owns. Go to FPO and click an “Expert Search.” Search for the patent owner by using the operator AN/xxxx where xxxx is the name of the business that sells the product.
Another way to find the relevant patents of the patent owner is to purchase the product and look for pattern markings. Under US patent laws, if the patent number isn’t found on the product, then the patent owner can’t collect damages until they give you actual notice of your infringement. In order to maximize damages, most patent owners mark their product with the patent number. To find the patent marking on the product, read my article Patent Marking: Everything you wanted to know.
Once you find the relevant patents, you can read through the patents and determine the scope of patent protection afforded under the relevant patents. If your competitive product is outside of the scope of patent protection for those patents, then you can certainly sell your competitive product. To find out more about how to determine the scope of patent protection afforded under a patent, read: Avoiding Patent Infringement.
You could sell someone else’s patented product by securing a license to do so. A license is a promise by the patent owner not to sue you should you make, use, sell, offer for sale, or import the patented product into the United States. Normally, you would have to pay a royalty to the patent owner for such a license. Nevertheless, with the license, you will be able to sell the patented product without patent infringement liability against such a person.
How to get a patent?
To get a patent, you need to do a patented search. If no patent document shows your invention, you can apply for the patent with the United States Patent and Trademark Office.
How to do a patent search?
To do a patent search, I recommend that you follow the 7-step patent search strategy published by the United States Patent and Trademark Office. You can follow my guide on the 7 steps: Conducting a Patent Search.
Apply for a patent
To apply for a patent, a patent application must be prepared and submitted to the United States Patent and Trademark Office. You can read my 8 tips for writing a patent application.